TEEJAN BAI Vs. YASHODA BAI TAMASKAR

JUDGEMENT

(1.) Challenge in this petition is to the order dated 13.09.2010 (Annexure P/1) passed by the respondent No. 4 i.e. Sub Divisional Officer (Revenue) Rajnandgaon, whereby re-counting of the votes has been ordered.

(2.) The facts, in brief, as projected by the petitioner are that the petitioner contested the election for the post of Panch of Gram Panchayat, Thakurtola, Tahsil & District Rajnandgaon. Polling was conducted on 03.02.2010 and the petitioner was declared as returned candidate. A certificate to this effect was also issued in her favour and was invited for attending the oath. The respondent No. 1, who had also contested the election, filed an Election Petition under provisions of section 122 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 read with Rule 80 of the Chhattisgarh Panchayat Election Rules, 1995. The presiding officer issued notice in the petition and fixed the matter on 29.03.2010 and after service of the notice, the petitioner appeared and filed her written statement on 18.08.2010 (Annexure P/4). Shri Kotecha next submits that the Presiding Officer, instead of acting as per Rule 5, 11 and 12 of the Chhattisgarh Panchayat (Election Petitions, Corrupt Practices & Disqualification of Membership) Rules, 1995 passed the order on 27.08.2010 calling the Returning Officer for recounting of votes on 13.09.2010. Shri Kotecha next submits that the Presiding Officer, without framing issues and taking evidences or affording opportunity to cross examine the witnesses, has directly ordered for recounting of votes, which is illegal. He further contends that after recounting, the respondent No. 1 was declared as returned candidate. Thus, the entire exercise of the Presiding Officer is illegal.

(3.) On the other hand, Shri Samir Singh, learned counsel appearing for the respondent No. 1 submits that in fact, the petitioner had secured only 6 votes in her favour and the respondent No. 1 had secured 73 votes. There was a clerical mistake in the notification which is evident that after recounting, the respondent No. 1 secured 73 votes and petitioner secured only 6 votes. Before recounting, the petitioner was shown to have secured 73 votes and the respondent No. 1 to have secured 6 votes. Even the recounting was done in presence of the Advocate for the petitioner. Thus, there is no illegality in the order passed by the Presiding Officer. So far as submission of written statement by the petitioner is concerned, the petitioner, even after getting several opportunities did not submit her written statement. On 27.08.2010, the petitioner was directed to submit her written statement till 06.09.2010. In the event of failure, the Chief Executive Officer and the Tahsildar, Rajnandgaon i.e. the Returning Officer, were directed to appear with ballot box on 13.09.2010 for recounting of the votes. It was on account of non-submission of the written statement by the petitioner which led the respondent No. 4 to proceed in accordance with Order VIII Rule 10 of the Code of Civil Procedure, 1908.